2021 IL App (2d) 191083-U 

No. 2-19-1083 

Order filed October 12, 2021

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent 

except in the limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court

ILLINOIS, ) of Du Page County. 

) 

Plaintiff-Appellee, ) 

) 

v. ) No. 18-CM-2105 

) 

SALVADOR M. SILVA, ) Honorable 

) Brian W. Jacobs, 

Defendant-Appellant. ) Judge, Presiding.

______________________________________________________________________________ 

JUSTICE SCHOSTOK delivered the judgment of the court.

Presiding Justice Bridges and Justice McLaren concurred in the judgment.

ORDER

¶ 1 Held: Sufficient evidence supported conviction of battery, and defendant’s statements to 

police after previous invocation of right to counsel were made voluntarily, 

knowingly, and intelligently. 

¶ 2 The defendant, Salvador M. Silva, was convicted by a jury of battery and theft, and was 

sentenced to two years’ probation. He appeals, arguing that there was insufficient evidence that 

he knowingly made contact of an insulting or provoking nature to support his conviction of battery, 

and that the trial court erred in denying his motion to suppress his statements to police. We affirm. 

¶ 3 I. BACKGROUND 
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¶ 4 The evidence at trial was as follows. About 5:45 on the afternoon of September 30, 2018, 

Christy Larson was in Northside Park, taking photos and videos for a project. A little after 6 p.m., 

she noticed Silva staring at her. She ignored him and continued taking videos. When she looked 

up and saw that he had moved closer, she turned her back to indicate that she did not want to 

interact with him. However, when she turned around again he had moved even closer. Silva, 

whom she did not know, said hello to her. She briefly said hi and then turned her back again.

¶ 5 When Larson had finished taking her video, Silva introduced himself and struck up a 

conversation with her. Silva asked if she was married and Larsen said yes, and then asked if Silva 

was single. They talked about where Silva lived in relation to the park. Silva then asked her 

several times to squat down, placing his hands on her shoulders and pushing down lightly. Larson 

was very surprised. She did not comply and said no. From behind her, Silva then began rubbing 

her thighs and placed his hands on her back under her shirt. Larson stepped away. Silva said 

something like “it’s hard to want something and not be able to get it.” Larson decided to leave 

and began walking toward the sidewalk. 

¶ 6 Silva followed her and began talking about photography again. Once they reached the 

sidewalk, Larson asked if he wanted to take a selfie with her, thinking that would placate him and 

would also give her evidence if she needed it. She took a selfie of them both with her phone. She 

did not use her phone to call the police because she had never done that before and it seemed like 

an extreme measure. Although she felt uncomfortable and concerned, she did not think she was 

in physical danger. She could smell alcohol on Silva’s breath and thought he was drunk. 

¶ 7 Silva then began talking to Larson in an explicitly sexual way, telling her that even though 

she was married she could still have sex with him and asking her if she wanted to have sex with 

him. Larson told him no. Larson began thinking about how to get away from Silva. She was 
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worried that, if she simply went home, Silva would follow her and learn where she and her family 

lived. From the time Silva had begun talking to her, there had not been anyone else nearby. After 

trying to think what to do, Larson thought that perhaps she could walk him to his house and leave 

him there. She began walking toward the side of the park near where Silva had said he lived. As 

they walked, Silva put his arm around her. Larson was uncomfortable but, viewing him as simply 

very drunk, did not feel particularly threatened. After they passed a more well-traveled part of the 

park near the pool, Silva began talking about sex again. Silva put his hand near Larson’s bra, and 

she quickly pushed it away and said no. To stop Silva from trying to touch her sexually, she took 

his hand and moved it to her shoulder, holding it there. Silva then put his other hand between her 

legs and asked her if she wanted him to lick her pussy. Larson moved his hand and said no. Silva 

licked her hand. 

¶ 8 Larson continued saying no to Silva’s propositions. As a “soft letdown,” Larson 

complimented Silva, telling him that he was handsome and fit but they were not going to have sex. 

Larson was uncomfortable but not scared, and it did not cross her mind to try to run away. They 

passed someone walking some dogs and Larson thought about asking that person for help, but she 

did not because Silva had not tried to use any force and did not seem threatening, and she still felt 

that the situation was under control. Larson was also trying to appease Silva, as she did not want 

him to become angry. 

¶ 9 As they approached a more isolated area, Silva began to veer off the sidewalk, pointing to 

the grass and saying “right here.” Larson became concerned, realizing that Silva was “a little bit 

more set” on his desire than she had expected. She told him that they were not going into that area 

and turned away from him. She then told him that she was going to leave and that he needed to 

stay there. 
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¶ 10 As she began to walk away, Silva confronted her, expressing concern that she had his 

picture on her phone. Larson noticed a jogger passing by and tried to follow him. She did not call 

out as she still hoped that Silva would simply allow her to leave and she did not want to make a 

scene. However, she could not keep up with the jogger. Silva then came up to her, put his arm 

around her shoulder and tried to steer her toward the grass. Larson became more alarmed and said 

that she was going to call her husband. Silva repeatedly said “don’t call,” and tried to get the 

phone from her. Before Larson was able to call her husband, Silva took her phone and put it in 

his pocket. Larson demanded that he give it back and tried to grab it from him. They grappled in 

a circle as she tried to get her phone and he prevented her from doing so. When she reached into 

his pocket to try to get her phone, some white powder fell out on his shoe. She asked him what it 

was, and Silva’s demeanor changed. He broke off and began running away. Wanting her phone 

back, Larson initially chased him, but she could not catch him and abandoned the chase after he 

cut through a marshy area. Larson then flagged down a passer-by and used his phone to call the 

police. 

¶ 11 After the police arrived and she explained what had happened, they became concerned and 

began treating the incident as more than simply a stolen phone. They insisted that she wait until 

an ambulance arrived and she was checked over. After that, they drove her to an apartment 

complex and asked if she recognized a man being detained. She was not sure at first; Silva had 

changed clothes from the park. Once she heard him speak, however, she was more certain. She

then accompanied the police to the station and gave written and video statements. That process 

took a few hours, and it was after 11 p.m. when she got home. The police had found her phone. 

She told them that there was a picture of Silva on the phone, and they downloaded it. Larson 

identified the photo at trial and it was admitted into evidence. 
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¶ 12 On cross-examination, Larson conceded that she did not initially mention the photo in her 

statements to police, and did not tell them why she took it. During the interviews, she had told the 

police that she complimented Silva by telling him that he was “strong, sexy and cute,” while still 

telling him no. She agreed that she did think he was cute. She did not understand the process of 

pressing charges, and asked the police whether it was “criminal charges or nothing.” She believed 

that Silva’s purpose in taking her phone was not to steal it, but because he was uncomfortable with 

having his picture on it. Larson testified that she was smiling in the selfie photo, and that she once 

laughed at one of Silva’s propositions, because laughter and smiling were a defense mechanism 

for her. 

¶ 13 Wheaton police officer Roberto Miraballi testified that, at about 6:30 in the evening, he 

was dispatched to Northside Park to investigate a complaint of a stolen cell phone. He and the 

other responding officers spoke with Larsen about what had happened. When they realized that 

the perpetrator had attempted sexual contact with Larsen, they called in more officers. The police 

began searching the area as Larsen was being medically cleared by the ambulance crew. They 

located Larsen’s phone in a trash can along the path. Other officers located someone they believed 

might be the suspect in the laundry room of a building near the park. Both Larsen and the suspect 

were eventually brought to the police station for interviews. 

¶ 14 Miraballi took part in the interview of the suspect, whom he identified in court as Silva. 

Silva was placed in a locked interview room shortly before 9 p.m. He initially had his cell phone 

with him and placed a call. The interview did not start until around 11:30 p.m. Asked how he was 

doing, Silva said that he was not doing well because something had happened in the park. He then 

said that he was coming from eating dinner in Carol Stream when the police found him, before 

admitting that he had been in the park. He saw a beautiful woman in the park and approached her 
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but “was not trying to touch her.” Silva then said that he did hug her at some point. He described 

a confrontation with Larsen in which she pushed and punched him, and attempted to kick him in 

the groin. He took her phone because she had a picture of him that he did not want her to have. 

At no point did Silva say that he was having any trouble understanding the officers. 

¶ 15 Wheaton police officer Brian Wagner testified that, when he began his shift at 7 p.m. on 

September 30, 2018, he was assigned to assist searching for the suspect near Northside Park. After 

another officer located a suspect in the laundry room of an apartment complex adjacent to the park, 

Wagner went there also. He identified the suspect in court as Silva. Silva appeared to be drunk, 

with glassy eyes, slurred speech, and an odor of alcohol on his breath. Wagner asked Silva what 

he had been doing earlier in the day, and Silva gave several conflicting stories, first denying being 

in the park, then admitting it, then denying it again. Silva also gave conflicting stories about the 

amount of alcohol he had consumed. After receiving Silva’s consent to do so, Wagner collected 

the clothing from the two washing machines that Silva had been loading, including a pair of jeans 

that was heavily soiled with dirt and plant material. Larsen was then brought to the scene to see if 

she identified Silva as the perpetrator. When Larsen arrived, Silva became nervous and fidgety, 

spontaneously repeating that he “didn’t do it” and that people got him confused a lot, as there were 

a lot of “Domingos.” 

¶ 16 The sole witness called by the defense was police detective Jackie Johnson, who 

participated in interviewing Silva and Larsen at the police station. During her interview of Larsen, 

she showed Larsen a printout of a map of the park, and Larsen marked on the map the areas of the 

park where she interacted with Silva. Johnson did not preserve the map as evidence. 

¶ 17 In closing, the defense argued that Larsen’s conduct was ambiguous and that Silva, who 

was drunk, simply misunderstood whether she welcomed his advances. The State noted that 
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Larsen repeatedly said no to Silva’s propositions and she physically removed his hands when he 

touched her, and argued that “no means no.” After deliberating, the jury found Silva guilty of 

battery and theft, and not guilty of disorderly conduct. 

¶ 18 At the sentencing hearing, the State noted that Larsen had expressed that she did not want 

to file a victim impact statement and did not want Silva to receive jail time. The State asked that 

Silva complete sex offender probation. The defense opposed this, again arguing that the situation 

had simply been a misunderstanding, not a crime. The trial court sentenced Silva to two years of 

ordinary probation, saying that it believed “that the defendant was intoxicated at this time, and also 

*** that the unusual behavior of the complaining witness in this case could have led an intoxicated 

person to believe that the complaining witness was in some way interested in the defendant.” 

However, the trial court also noted that the jury had weighed this argument and found Silva guilty 

of both battery and theft. 

¶ 19 II. ANALYSIS

¶ 20 Silva now appeals, arguing that (1) there was insufficient evidence that he knowingly made 

insulting or provoking contact with Larson, given her ambiguous statements and conduct, and (2) 

the trial court erred in denying his motion to suppress his statements to the police.

¶ 21 A. Sufficiency of the Evidence

¶ 22 To sustain Silva’s battery conviction, the State was required to prove beyond a reasonable 

doubt that he knowingly made physical contact of an insulting or provoking nature with Larsen. 

See 720 ILCS 5/12-3(a)(2) (West 2016). Silva argues that the State did not prove that he

knowingly made insulting or provoking contact with Larson, given her ambiguous statements and 

conduct. 
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¶ 23 In evaluating the sufficiency of the evidence, it is not the province of this court to retry the 

defendant. People v. Collins, 106 Ill. 2d 237, 261 (1985). The relevant question is “ ‘whether, 

after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact 

could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in 

original.) Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The weight to be given to 

the witnesses’ testimony, the determination of their credibility, and the reasonable inferences to be 

drawn from the evidence are all matters within the jurisdiction of the trier of fact. People v. Smith, 

185 Ill. 2d 532, 542 (1999); Collins, 106 Ill. 2d at 261-62. Likewise, the resolution of any conflicts 

or inconsistencies in the evidence is also within the province of the fact finder. Collins, 106 Ill. 

2d at 261-62. We will set aside a criminal conviction only “where the evidence is so unreasonable, 

improbable, or unsatisfactory as to justify a reasonable doubt of defendant’s guilt.” Smith, 185 Ill. 

2d at 542. 

¶ 24 Silva argues that the evidence failed to show beyond a reasonable doubt either that his 

touching of Larsen was in fact insulting or provoking to her, or that he knew that it was, because 

his conduct did not cause her to scream or call the police, and Larsen’s compliments made him 

think that she liked him. However, the evidence also showed that Larsen repeatedly told Silva no 

in response to his advances and physically resisted his attempts to touch her sexually. She thus 

demonstrated that his sexual touching of her was objectionable and communicated that fact to him. 

¶ 25 It is the job of the jury to resolve any conflicts or inconsistencies in the evidence (Collins, 

106 Ill. 2d at 261-62), and here the jury did just that. A rational juror could well find, on the 

evidence presented, that Silva knew his sexual touching of Larsen was unwelcome and simply 

chose to ignore Larsen’s communication of the boundaries on the behavior she would tolerate. We 

therefore reject Silva’s argument regarding the sufficiency of the evidence. 
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¶ 26 B. Denial of the Motion to Suppress

¶ 27 We now turn to Silva’s argument that the trial court erred in denying his motion to suppress 

statements he made to police on the night of the incident. We begin by recounting the relevant 

facts. 

¶ 28 Prior to the trial in this case, Silva moved to suppress his statements made after being taken 

into custody, arguing that they were made after he had indicated a desire to be represented by 

counsel, but the police improperly continued to interrogate him. At the parties’ request, the trial 

court viewed a video recording of the entire time that Silva spent in the interview room, a roughly 

three-and-a-half-hour period that included a little over 30 minutes of actual interrogation. The 

motion also stated that Silva was in a cell alone before being moved to the interview room. 

¶ 29 The video showed that Silva was brought to the interview room at about 8:42 p.m. Silva 

asked for coffee, and an officer brought him some. The officer then asked Silva to remove his 

belt, shoes, hat, and chain. Silva asked what happened, and the officer told him that he was being 

placed in custody for an incident that happened earlier that night. The officer left with Silva’s 

clothing items. Silva drank his coffee.

¶ 30 About 9:36, Silva asked for more coffee. An officer told him that they were out of coffee 

and would have to make more. Silva asked when they would talk with him and was told “soon.” 

The officer left and Silva pulled out his cell phone, which the police had not taken from him. He 

placed a call. He gave his name and said that he would like a lawyer, then hung up. An officer 

entered the interview room and asked if Silva had his phone. Silva said yes, and that he had already 

called his lawyer. The officer told him that they needed to take his phone. Silva said that he 

needed to talk with his lawyer. The officer took the phone and left the room. About a minute 

later, Detective Johnson entered the room and told Silva that they would speak with him soon. 
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Silva told her that he had work the next morning and had already called his lawyer. Johnson left 

the room. Silva then asked to use bathroom and was allowed to do so. As part of that process, his 

pockets were searched, yielding only quarters for the laundry. The police left the interview room 

again about 9:50 p.m.

¶ 31 Almost an hour later, at 10:44 p.m., Silva banged on the door of the interview room and 

asked when they were going to come talk with him. At 11:23 p.m., Johnson reentered the room

and asked Silva if he wanted more coffee. Silva said yes, commented that the room was cold, and 

said that he did not know what was going on, “but anyway I’ll help you.” Johnson told him she 

would be back after the coffee was brewed. 

¶ 32 A few minutes later, Johnson reentered with a cup of coffee for Silva. When she asked if 

he was okay, he responded with a burst of speech, saying that he was fine, he was only worried 

because he was doing laundry when the police arrived and told him that something happened in 

the park, but he did not know what happened. Johnson told him that everything was being recorded 

and pointed to the cameras, and Silva said, “yes, right.” Miraballi joined them in the interview 

room. Johnson said that before they got started, she wanted to get some “basic information” from 

him, and Silva said, “I will answer you.” 

¶ 33 Silva gave his name, date of birth, address, employment, and education in response to 

questions. When he began to talk about the events of the evening, Johnson stopped him from 

doing so. She then read him his Miranda rights and asked if he understood them. Silva said yes. 

He asked what was going on and said that he had called an attorney. Johnson immediately asked 

Silva whether he wanted to speak with her, and Silva said yes. He said that he would help them 

and asked what was going on. 
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¶ 34 Silva told them that he had been at work, had come home and gone for a walk in the park, 

and then began doing laundry. When asked to say more about his walk in the park, Silva at first 

said that he did not want to talk about his “private life,” but then agreed to talk to Johnson about 

that. Asked to describe his interaction with “a girl in the park,” Silva said no. Miraballi pressed 

him, saying that Silva could already be charged with several crimes just based on the information 

they already had, but this was his opportunity to tell his side of the story. Silva then talked about 

the incident. After a minute, Silva asked for someone who could speak Spanish. Miraballi told 

him that no one was available right then. Silva continued talking. 

¶ 35 After a few minutes, Silva said that now it was “too late,” and said that if he had to “pay 

for it” to please send him a lawyer. Noting that Silva had talked about calling a lawyer or said that 

he had done so, Miraballi said that he needed to know whether Silva wanted to continue speaking 

with them. Silva said yes. Johnson emphasized that if Silva ever wanted to stop talking or get a 

lawyer he could just tell them so. 

¶ 36 Silva agreed to do so and continued talking about the incident. However, a few minutes 

later, he said, “I need a lawyer first.” Johnson asked Silva if he wanted a lawyer right then. Silva 

said yes. However, he then continued talking—in fact, both officers tried to get him to stop talking 

and clarify his comments about a lawyer but he continued talking over them and would not stop. 

At 11:59 p.m., Johnson asked if Silva meant that he wanted a lawyer after he finished speaking 

with them; Silva again said yes and then launched into a stream of statements about the incident. 

After about a minute, Johnson was able to interrupt and get him to stop and listen to her questions. 

She asked Silva if he wanted a lawyer with him while he answered questions. Silva said yes, but 

continued to talk about the accusations against him. Johnson told him that he needed to stop 

because he wanted a lawyer. Silva said he did not understand and asked if they were going to take 
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him somewhere else. The officers left the room. After a few minutes, Silva began talking to 

himself or an imaginary listener about the incident. The video recording ended a few minutes 

later. Silva does not assert that he was questioned further after Johnson and Miraballi left the 

room. 

¶ 37 After hearing argument from the parties, the trial court denied the motion to suppress. The 

court noted that Silva called someone on his phone and asked for a lawyer at about 9:30 p.m., and 

told the police that he had done so. However, at 10:44 p.m., Silva banged on the door and asked 

when the police were going to come talk with him, which was an indication that he was willing to 

answer questions. This was a voluntary reinitiation of communication by Silva. Before that point, 

there had not been any interrogation of him. 

¶ 38 The court further found that, once the interrogation began, Silva indicated several times 

that he wanted a lawyer. However, each time, the police stopped questioning him, and Silva then 

said that he wanted to continue answering questions. Accordingly, the trial court found that Silva 

had voluntarily waived his right to an attorney and that the police did not violate his rights by 

continuing to question him. 

¶ 39 The video of Silva’s interrogation was not shown to the jury at trial. However, Miraballi 

testified about Silva’s statements as described in ¶ 14, supra, and the State invoked Silva’s 

statement about “something happened in the park” multiple times during its closing arguments. 

¶ 40 On appeal, Silva argues that: the police violated his constitutional rights by continuing to 

question him after he had invoked his right to counsel; even if he reinitiated contact with the police, 

his waiver of his right to counsel was not knowing and voluntary; and the erroneous admission of 

his statements at trial was not harmless as the State repeatedly used his statements against him. 

The State responds that Silva clearly reinitiated communication with the police at 10:44 p.m., over 
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an hour after his phone call seeking a lawyer. Further, every subsequent time that Silva mentioned 

wanting a lawyer, he then affirmed that he wanted to continue speaking with them without waiting 

for a lawyer to be present (until his final request for counsel, which they honored by terminating 

the interrogation). The State also argues that any error in not suppressing Silva’s custodial 

statements was harmless, as Silva’s statements and conduct prior to being taken into custody were 

equally probative of his guilty mind, and there was other evidence, such as his picture on Larson’s 

phone and Larson’s testimony and identification of him, that proved his guilt beyond a reasonable 

doubt. 

¶ 41 In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court held that, to safeguard the 

constitutional right against self-incrimination, those who are subjected to custodial interrogation 

are entitled to have counsel present during the questioning. People v. Mandoline, 2017 IL App 

(2d) 150511, ¶ 102. Under Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), “an individual who 

has indicated that he wishes to deal with the police only through counsel” may not be subjected to 

“further interrogation by the police *** unless the accused himself initiates further discussion with 

the police.” Mandoline, 2017 IL App (2d) 150511, ¶ 102. 

¶ 42 A two-step analysis applies in determining the admissibility of any statements made after 

the accused has invoked his right to counsel. Id. ¶ 103. First, the court must determine whether it 

was the defendant or the police who reinitiated communication after the defendant invoked his 

right to counsel. If the defendant was the one who reinitiated communication, the second issue is 

whether he waived his right to counsel voluntarily, knowingly, and intelligently. Id. In making 

this latter assessment, courts consider “the totality of the circumstances, including the fact that the 

defendant reopened the discussion.” Id. 
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¶ 43 Our review of the trial court’s ruling on the defendant’s motion to suppress involves 

questions of both law and fact. People v. Richardson, 234 Ill. 2d 233, 251 (2009). We accord 

great deference to the trial court’s findings of fact and will not reverse them unless they are against 

the manifest weight of the evidence. Id. However, the ultimate question of whether a confession 

was voluntary is a legal question which we review de novo. Id. In making this determination, we 

consider the evidence presented at trial as well as that presented at the suppression hearing. Id. at 

252. 

¶ 44 Here, the trial court found that Silva’s acts of placing a telephone call seeking a lawyer and 

then telling police that he had done so constituted an invocation of his right to have an attorney 

present during questioning, but he voluntarily reinitiated communication with the police at 10:44 

p.m. when he banged on the door and asked when they were going to come talk with him. We 

agree with both of these findings. 

¶ 45 “In order for the accused to ‘initiate’ contact, the accused must make a statement that 

evinces a willingness and a desire for generalized discussion about the investigation.” People v. 

Crotty, 394 Ill. App. 3d 651, 656 (2009) (citing People v. Woolley, 178 Ill. 2d 175, 198 (1997)). 

Silva argues that his question about when the police would come to talk with him did not rise to 

this level and was not a reinitiation of communication with the police. In support of this argument, 

he cites People v. Flores, 315 Ill. App. 3d 387, 393 (2000), in which a reviewing court found that 

a defendant asking “what’s happening?” upon encountering a group of people while being led to 

the bathroom did not indicate a desire to re-engage with the police about his case. This court has 

criticized the analysis in Flores and instead follows the approach taken by the United States 

Supreme Court in Oregon v. Bradshaw, 462 U.S. 1039 (1983), and by our own supreme court in 

Woolley. See Crotty, 394 Ill. App. 3d at 660. In Bradshaw, the defendant invoked his right to 
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have a lawyer present during questioning, and the police ceased interrogating him. However, 

during a transfer to another holding facility, he asked a police officer “Well, what is going to 

happen to me now?” Bradshaw, 462 U.S. at 1042. The Supreme Court held that, “[a]lthough 

ambiguous, the respondent’s question in this case as to what was going to happen to him evinced 

a willingness and a desire for a generalized discussion about the investigation; it was not merely a 

necessary inquiry arising out of the incidents of the custodial relationship.” Id. at 1045-46. 

Similarly, in Crotty, after invoking his right to counsel and being left alone, the defendant then 

asked for someone to come talk to him, and when the detective was brought to him, he asked the 

detective about what was happening and “the process.” Crotty, 394 Ill. App. 3d at 653-54. Relying 

on Bradshaw, we held that these questions “indicated his desire and willingness to engage in a 

generalized discussion about the investigation. Id. at 661. 

¶ 46 Applying these principles here, Silva’s question about when the police were going to talk 

with him demonstrated a willingness to speak with them about the investigation, and was not 

simply a question about some aspect of his custody. Further, once the police began speaking with 

him again but before they asked him any questions about the incident, Silva told them that he 

would help them and would answer their questions. We therefore agree with the trial court’s 

determination that Silva reinitiated communication with the police, waiving his prior invocation 

of his right to counsel. 

¶ 47 Silva’s next argument involves the second step of the two-step analysis identified in 

Mandoline: if the court determines that the defendant reinitiated contact with the police, it must 

then determine whether the defendant’s waiver of his right to counsel was voluntary, knowing, 

and intelligent. Mandoline, 2017 IL App (2d) 150511, ¶ 103. We begin by setting out the tests 

applicable to each of these concepts. 
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“The test for voluntariness is whether the defendant made the decision freely, without 

compulsion or inducement, or whether the defendant’s will was overborne at the relevant 

time. [Citation.] To implement this test, we consider the totality of the circumstances 

surrounding the statements, including the defendant’s age, intelligence, education, 

experience, and physical condition at the relevant time; the duration of the interrogation; 

the presence of Miranda warnings; the presence of any physical or mental abuse; and the 

legality and duration of the detention.” Id. ¶ 116. 

As for whether the statements were made knowingly and intelligently, “we consider the specific 

facts and circumstances, including the defendant’s background, experience, and conduct.” 

Id. ¶ 128. The trial court’s determination as to whether statements were made voluntarily, 

knowingly, and intelligently is a finding of fact, and we will not disturb that determination unless 

it was against the manifest weight of the evidence. People v. Phillips, 226 Ill. App. 3d 878, 886 

(1992). 

¶ 48 Silva’s arguments do not rest on any specific aspect of these tests such as his individual 

characteristics, and he does not assert that the interrogation was particularly coercive. Instead, he 

argues that his repeated references during the interrogation to calling his lawyer and his frequent 

requests that the police tell him what was going on show that he did not understand the choice he 

was facing of answering questions without a lawyer present or else ceasing all communication 

with the police. He also argues that the police officers’ conduct in continuing to question him 

despite his references to calling his lawyer led him to believe that his invocation of his right to 

counsel would not be honored and that he had no choice but to speak with them. Accordingly, he 

contends, his custodial statements should have been suppressed. 
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¶ 49 We reject these arguments. The assertion that the police essentially undermined his 

attempts to assert his rights is belied by the record, which shows that whenever he mentioned 

getting a lawyer, the police immediately stopped questioning him about the incident until he 

affirmed that he wanted to keep talking with them despite the absence of his lawyer. Nor did the 

police use coercive tactics on him or deprive him of basic comforts such as coffee or bathroom 

use; they simply left him alone for a time while conducting their investigation. The video evidence 

does not support Silva’s claim that his statement was not voluntarily made. 

¶ 50 Silva also argues that he did not knowingly and intelligently waive his constitutional rights 

after he was given Miranda warnings. The requirement that any post-Miranda-warning waiver of 

rights be made knowingly and intelligently is a separate requirement from the requirement of 

voluntariness. See People v. Bernasco, 138 Ill. 2d 349, 356 (1990). “[I]ntelligent knowledge in 

the Miranda context *** need not mean the ability to understand far-reaching legal and strategic 

effects of waiving one’s rights, or to appreciate how widely or deeply an interrogation may probe, 

or to withstand the influence of stress or fancy.” Id. at 363. Rather, “to waive rights intelligently 

and knowingly, one must *** understand basically what those rights encompass and minimally 

what their waiver will entail.” Id. Generally, the demands of the fifth and sixth amendments to 

the United States constitution will be met where the defendant is “aware of two points: (1) he had 

a right to consult with an attorney, to have an attorney present during questioning, and to have an 

attorney appointed if he could not afford to retain one privately; and (2) any statement that he made 

could be used against him in criminal proceedings, and an attorney’s presence during questioning 

could serve him by affording him advice on making any statements.” Id. at 360-61 (discussing the 

holding of Patterson v. Illinois, 487 U.S. 285 (1988)). It is this level of awareness, which is 

ordinarily supplied by the giving of Miranda warnings, that is “necessary in order to constitute the 
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intelligent knowledge that *** is required for blunting the coercive effects of police interrogation 

in a Miranda waiver context.” Id. at 361.

¶ 51 In cases where Miranda warnings have been given and a defendant then waived them and 

gave a statement, generally the defendant must show some reason why those warnings were not 

sufficient to make him aware of his rights, such that his waiver was not valid. Such reasons may 

include the defendant’s particularly low level of intellectual functioning, or an inability to 

understand the warnings because of language difficulties. See, e.g., id. at 362 (Miranda warnings 

were insufficient to show knowing and intelligent waiver of rights where defendant’s response to 

questions during the suppression hearing showed that he had difficulty understanding even 

relatively simple concepts and there was expert testimony of his below-level intelligence); People 

v. Braggs, 209 Ill. 2d 492, 501-02 (no knowing and intelligent waiver where defendant functioned 

at a kindergarten level and could not answer simple questions about the meaning of the words used 

in the warnings she had been given); cf. People v. Son Le, 2014 IL App (1st) 121989-U, ¶ 25 

(affirming the trial court’s denial of a motion to suppress where evidence indicated that the 

defendant adequately understood the warnings given in English, even though his first language 

was Vietnamese and he had limited proficiency in English). 

¶ 52 Here, however, Silva does not argue that he could not understand the Miranda warnings 

he was given. Rather, he simply argues that his repeated questions about what was going on during 

his detention showed that he was confused and did not fully grasp how to assert his rights 

effectively. Silva cites no precedent suggesting that this is sufficient to show that his waiver of his 

Miranda rights was not knowing and intelligent. To the contrary, “[t]he Constitution does not 

demand ‘that the police supply a suspect with a flow in information to help him calibrate his selfinterest in deciding whether to speak or stand by his rights’ [quoting Moran v. Burbine, 475 U.S. 
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412, 422 (1986)], and there is no Federal constitutional right to confess only when in possession 

of information that ‘could affect only the wisdom of a Miranda waiver, not its essentially voluntary 

and knowing nature’ [quoting Colorado v. Spring, 479 U.S. 564, 5 (1987)].” Bernasco, 138 Ill. 

2d at 359-60. 

¶ 53 To sum up, the trial court did not err in finding that Silva’s statements were made 

voluntarily, knowingly, and intelligently, nor did it err in denying the motion to suppress those 

statements. Because we conclude that there was no error, we need not reach the arguments about 

whether any error was harmless. 

¶ 54 III. CONCLUSION

¶ 55 For the reasons stated, the judgment of the circuit court of Du Page County is affirmed. 

¶ 56 Affirmed.